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‘Tis true, Jeff Sessions is a serious downer, a buzz killer for the ages. As long feared, Attorney General Jeff Sessions is revoking an Obama-era directive–the so-called ‘Cole memo’–that restrained enforcement of federal marijuana laws in states that had legalized it. But things are not going to be so easy for this dastardly ve-haf-ways-to-make-you-stop-smoking Sessions brigade; the proverbial genie has escaped the bottle. The national bowl has been packed and too many people–rich and white–are toking on it it. Morals and laws and principles and a great deal else often gives way in the face of lucre of the filthy kind. For a long time, the War on Drugs was prosecuted with as much zeal as it was because it was fueled by both racism and by the financial gains that flowed directly to law enforcement agencies’ budgets and operations. The tide turned on that front–thanks to a combination of fatigue, common sense, increased public awareness of the War on Drugs’ racist components, and finally, the plain, simple, uncontrovertible financial common sense of declaring a ceasefire and going over to a domain of decriminalization and legalization and subsequent tax revenue collection instead.

Several years on from Colorado’s landmark decision to legalize marijuana for recreational use, that financial common sense has been confirmed:

Unsurprisingly, such numbers are backed up by popular opinion–close to sixty percent of Americans support legalization in some shape or form for marijuana, whether recreational or medical. But balance sheets speak far louder than opinion surveys, and this time around, the War on Drugs will be the War on Legal and Extremely Financially Lucrative Pot Business Run By Largely White Folk. Those whose interests will be affected by this new declaration of hostilities are considerably more financially and politically empowered than the ones targeted in the last legal crackdown on marijuana; those folks were darker, they lived in housing projects, and were easily made the target of a penal crackdown. This time around, the support is fueled by dollars and Democrats and the donor class alike. The official Twitter account of the Colorado State Senate Democratic Caucus should have the last word on this–and I suspect it will:

We’ll give Jeff Sessions our legal pot when he pries it from our warm, extremely interesting to look at hands.

Blood is in the water: the president of the United States appears to have committed ‘obstruction of justice.’ We know this because a ‘legal dream team’ headed by a special prosecutor, a former head of the FBI, is conducting a long, expensive, and detailed investigation of all the president’s men. The nefarious activities suspected to have been undertaken are varied and detailed; like most Americans, I’m entirely unsure of the precise particulars of the tangled web that is being unwoven for us. But those details seem unimportant; for at the end of it all lies deliverance, the impeachment of Donald Trump, the eviction of the carpetbaggers currently occupying the White House.

For some time now, via television and talk show and social media, we have been treated to the spectacle of–I do not think I exaggerate–millions of Americans salivating over the legal particulars of Bob Mueller’s investigation: how detailed and thorough its collection of evidence and marshaling of witnesses is; its skillful deployment of carrot and–a very big and threatening–stick in making legal plea deals; and so on. An entire cottage industry of tweeting experts has sprung up to inform us, in hushed and breathless tones, of how legally significant the latest development is and just how much shit is currently splattering various fans; these tweets go viral, urged hither and thither, as if merely by talking about how bad things are going to get for Trump and his men, their end can be hastened. There is much gleeful talk of how those working in the Trump administration will be bankrupted by their legal fees as they are subpoenaed till the cows come home; you cannot escape the clutches of the ‘ace prosecutors’ that this paragon of virtue–a former FBI head–has lined up.

The worst features of our legal system are on display: the staggering legal fees; the unfettered power of prosecutors. Give ’em hell, we say, because we know the legal system can destroy your life in all these ways; we’re just happy these big guns are turned against our political enemies. (Even if they have never been turned against the corporations that rule the republic’s roost.) It is a strange business for a nation which plays host to the moral and legal atrocity called ‘mass incarceration’ to be so cheering on a bunch of prosecutors–a demographic unfettered in its legal power, and persistently accused of misconduct. It is a peculiar business too that the FBI–whose investigations into political activists have, historically and currently, marked it out as anything but apolitical–is being hailed as the savior of the American Republic and our political knight in armor.

What Mueller’s investigation has done, of course, is turn political resistance to Trump into a spectator sport: we sit back–indeed, many have said just that–grab the popcorn and watch the shit show go down, and the superheroes, er, special prosecutors, will come to our rescue, ridding us of this blight. The legal system and its investigations appear to be working as a sponge, soaking up the political will and energy of Americans who otherwise might have been engaged in serious thinking about their political options. Instead, they have handed over their political agency to a bunch of lawyers appointed guardians of the state and our polity.

But it isn’t the lack of law that got us here; it is that plenty of institutional deformations are written into our laws and therefore respected; they demand for themselves a prima facie legal obligation, because they are burnished by the aura of the law, which is being enhanced by the ‘legal investigation’ under way. But the undemocratic Senate is legal; gerrymandering is legal; Supreme Court rulings that lock particular interpretations of the US Constitution into place are legal; the Electoral College is legal. Governments can be shut down legally; the US Senate can legally–under one interpretation–refuse to even consider a President’s nominee for the Supreme Court. The blocking of Obama’s nominations to the Federal Courts by the Republican Party and the corresponding stuffing of the Federal Courts by Federalist Society nominees was all legal. No dictator need abuse any legal American institutions in order to become a totalitarian despot. (This point has been made, quite eloquently, several times over, by Corey Robin; here is one variant of that claim.) That despotic power is built, legally, into American political institutions, all ready and ripe for hijacking by bad actors. Those bad actors are here, and they’ve hijacked the polity.

We are witnessing an old maneuver, one oft-repeated: take an existing political or social problem, subject it to the law, and pretend it has been solved. The authority of the law, its ideological entrenchment is reinforced, but the social or political problem remains unsolved. What will Bob Mueller’s team rid this republic of? A president, and very optimistically, his vice president too. Mueller cannot impeach the Republican Party (which will, in any case, not impeach Trump.) How then, will this nation’s political crisis be resolved? Mueller’s actions will not bring the Republican Party’s nihilism to heel. Indeed, an even worse hangover awaits us, if as is likely, this entire expensive legal investigation will end only with Trump riding out his term unscathed and going on to greater riches ‘outside.’ When the smoke clears and this prosecution is over, we will be left with the same severely compromised republic we had before. No team of special prosecutors can bring that to heel. We have outsourced the hard work to someone else, expecting to be rescued from a mess we made ourselves. This is ours; we have to clean this up.

In response to my post ‘Punching Nazis in the Face and Anti-Antifa Critiques‘ a friend of mine offered some critical responses on Facebook; these responses have offered me an opportunity to try to express my original claims more clearly. My responses are below. (Excerpts from my original post are indented in plain text; my friend’s responses are italicized.)

A week or so ago, shortly after the murder of Heather Heyer in Charlottesville, I asked on my Facebook page: “Is it OK to punch a Nazi in the face? Asking for a Virginian friend.” As might have been expected this semi-serious query sparked an interesting discussion in the course of which one of my friends asked me to clarify on when I thought the use of violence was justified–against the kinds of folks who marched in Charlottesville or against folks like Richard Spencer, who did indeed, get punched in the face. My reply went as follows:

I do think that Nazis create a greater threat than other instance of ideology on two legs, and will amplify and make that threat more manifest in a manner that will prompt violence directed at them – I’m OK with that violence. If I see a Nazi rally in my street, and a couple of goons screaming in my daughter’s face, I will fucking punch them. It it possible then that I will suffer Clanton’s fate, but I will plead in my defense, that I was protecting my daughter from ‘assault.’ And I will have a good legal case for doing so – Nazis, too often, behave in ways that constitute ‘assault’ – technically. They’re asking for punches.

My reply clarifies something about the nature of the so-called ‘violence’ directed at Nazis by Antifa, and responds to the various critiques directed at those who have ‘clashed’ with the various brands of white supremacists who have started to emerge, in increasing numbers, from the woodwork. The following points, I think, are salient, and build on it:

Violence takes many forms; current critiques of Antifa fetishize physical violence, the actual meeting of flesh vs. flesh; they fail to address the violence present in a relentless pattern of intimidation and abuse and overt exertions of power. These critiques are blind in a crucial dimension; they take their eyes off the content and the history of Nazi/white supremacist speech and action; they do not examine their impact of those that bear the brunt of these. The legal definition of ‘assault’ is more catholic: it admits of more forms of violence, and allows for a greater range of actions in response.

For many folks, the sight of Nazis marching in the streets, calling them sub-human, demanding they leave their homes and ‘go back’ to where ‘they came from,’ is already assault. Nazis don’t offer political critique: they reduce my humanity. (Read the Daily Stormer if you doubt this.) If they attempt to do that to my daughter, I will not wait for them to start swinging. I’ll start swinging first; there is, no, I repeat, no, talking with Nazis. I will not allow my daughter to be ‘assaulted’ by Nazis; more to the point, I will not rely on the goodwill of the police or the state to protect me. They have already made clear they will not defend my family or me. The daily news assures me of their non-cooperation in this matter. Indeed, I expect that they will stand by and let violence be done to me.

Unsurprisingly most objections to the Antifa originate in ‘moderate whites’–the same folks that Dr. Martin Luther King Jr. described as being the greatest barrier to the civil rights movement–these folks do not feel physically threatened in the same way that people of color are when Nazis and white supremacists march through their neighborhoods; they have not been subjected to the daily rituals of aggression that people of color are. They do not have their accent remarked on, they are not asked to repeat themselves, they are not subjected to relentless, ignorant queries that betray a lack of cultural sensitivity and an overwhelming ignorance that is anything but benign. Sexism, racism, misogyny, transphobia, Islamophobia; these all exert a daily toll that most ‘moderate whites’ do not experience or understand. As James Baldwin pointed out a long time ago, thanks to segregation, which continues today, most whites know nothing about their fellow black citizens; they do not know what they feel, how they feel, what they think or how they think. Offering political advice on how to conduct protests to this community is an act of political hubris. So is offering political advice to those who, by their actions, act to reduce the daily intimidation experienced by people of color.

Every single call to denounce the Antifa and their tactics abdicates political agency: if the Antifa do X, then our political opponents will do Y, and we can do nothing about it. There the discussion stops; there is no talk of whether there are any substantive countermoves to Y. The propaganda countermeasures that say that violence on ‘both sides’ will be condemned cannot be combated; the state’s crackdown–now justified because of Antifa’s violence–cannot be resisted. Our only option is acquiescence in the face of precisely those some propaganda countermeasures and the same state crackdown that are already visible today. Here, the moderate white’s imagination breaks down. He cannot imagine a political move in response; all is lost. The ‘other’ will act, and ‘we’ will simply be subject to their actions. We, through our actions and speech, can do nothing in response. This is not political critique; this is surrender.

This is a country in the grip of an ongoing large-scale human rights violation and moral atrocity called ‘mass incarceration’; in this country, police can arrest, assault, harass, imprison, and kill people of color at whim with no accountability; this is the world in which ‘moderate whites’ want the antifa to be treated as morally equivalent to the marching Nazis and for those who seek to combat their violence. In this country, white supremacists control the government and its other branches; here, the moderate white would like the Antifa to keep on marching, keep on checking to see if the ‘moderate white’ approves of their tactics–the moderate white will continue to wait for the non-existent perfect protest, made at the right time, in the right place, in the right way.

Here is a thought experiment concerning 1930s Germany: What would have happened if German Antifa had indeed come out swinging against the Nazis? What if every time the Nazis had held a rally, they had been greeted, not just with overwhelming numbers, but with a swift punch to the face every time one of them opened their mouths to pronounce their murderous ideology? What if that ‘violence’ had indeed overwhelmed the Nazis in Germany? Perhaps the problem with the violence directed against the Nazis in 1930s Germany was that there simply was not enough of it. Twelve years later, German cities had to be reduced to ashes.

It’s notable how easily violent thoughts have come to those of us who have known only a single, and much contested, month of the Trump-Bannon era. American exceptionalism may be dead, but it lives on as a habit of mind…in the unprecedented horror we imagine ourselves to be experiencing….It might be useful to think about these fantasies in wider terms, as a way of trying to understand the citizens of other countries, particularly those whom Americans have for the most part refused to sympathise with. We might try, for example, to understand why Palestinians have carried out violent attacks against the people who have occupied them for…half a century. They have been under military rule, without recourse to elections or a fair legal system, much less citizenship, for roughly 600 times as long as we have been under Trump.

Indeed. And we would do well too, to look inwards and closer as well, at the state of communities that have already, for ages now, suffered the kind of political and legal regime we imagine the Trump-Bannon era to resemble. The crisis of mass incarceration and the systematic evisceration of the US Constitution that it has both relied upon and facilitated provides the grimmest reminder that arbitrary search and seizure, detention, arrest, show trials, and cruel prison sentences are already the norm for some American citizens. Innocents make plea deals that send them to jail for years; families are torn asunder; no one reading the formidable corpus of literature on America’s prison and penal system, or the manifestos issued by Black Lives Matter, would imagine that much worse could happen to a black American in the Trump-Bannon era. The heavy-handed knock on the door in the middle of the night at the end of which a young man goes missing, and sometimes ends up dead in police custody? Been there, done that. The road-stop followed by the gunshot, which leaves an unarmed man dead? Been there, done that too. The ACLU received $24 million in donations in the weekend following the issuing of the disastrous ‘Muslim ban’ Trump executive order; it certainly could have used some of those dollars in holding the tide against the assault on the Constitution that drug warriors have been mounting for close to over three decades now.

Why, again, would such an openly declared war not provoke fantasies of violence? America is lucky, very lucky, that the millions of guns floating around in its cities and suburbs have not yet been turned against the armed constabularies who, on the pretext of conducting a War on Drugs, have felt free to promiscuously wage war against entire demographics instead.

The Trump-Bannon era calls for resistance, and resisted it will be. But let us not imagine that this era is exceptional, that the political and legal crisis it showcases is. To do so would be to lapse all too easily to facile self-congratulation, and to let the real work remain undone.

A quick quiz: When you think of phrases like ‘all lawyers are liars,’ ‘the law is an ass,’ ‘first thing we do, let’s kill all the lawyers,’ what vision of miscarriages of justice come to mind? Do you think of the innocent being deemed guilty, or do you think of the guilty getting off scot-free? Let me venture a guess: it’s the latter. Moreover, I would also surmise that the kind of lawyer you have in mind when these images of law present themselves is a very particular one: the defense lawyer. A sneaky, unethical, slimy, conniving, opportunist who represents the reprehensible, who puts his morals on hold and sallies forth to defend the indefensible, looking for loopholes in the law through which his client may wriggle, away from the grasp of the law and the virtuous society which seeks to prosecute him. Isn’t that really the worst kind of lawyer? The defense lawyers? You know, the ones who defend the ‘guilty’?

We have plenty of cultural representations to thank for this image of the defense lawyer. (I was reminded of this all over again as I sat through the second season of Broadchurch; in the last episode, the assistant prosecutor makes sure to tell the eager assistant defense attorney that she is a ‘horrible person;’ the series makers have done their best till then to drive us to the same conclusion; she is, after all, shown to be the master of the dirty trick, anything to get her client, a murdering pedophile, off the hook.) Remember the phrase ‘all lawyered up’ made so popular by one police and homicide procedural after another? Apparently, policemen and judges and detectives just want to do their work, but those pesky defense attorneys get in the way.

These are strange representations to deal with in a country engaged in the process of a gigantic human rights violation called ‘mass incarceration.’ Here, prosecutors engage all too often in gross misconduct, piling up charge after charge on their initial indictments, which they will then drop down to force accused into plea deals for lesser sentences, thus often forcing the innocent to choose jail time. They strike us as even stranger when we consider that the hardest working species of lawyer is the public defense attorney: overworked and underpaid, staggering under a caseload that would bring the most ardent workaholic to his knees.

This state of affairs is entirely unsurprising. We are a very self-righteous species, blessed with a sense of our own rectitude and of the guilt of others; our insecurity in the former dimension makes us lash out in the latter; our theories of punishment are infected with petty, vicious, vindictiveness. We suspect legal protections for the accused because we do not imagine ourselves ever needing them; they are there merely as smokescreens and obfuscations of the legal process. So those who employ them must be suspect too; they must be sophists and liars, manipulators employing deceitful sleight of hand maneuvers to pull the wool over our collective eyes.

Perhaps we should be more tolerant of the defense lawyer; perhaps we should not rush to judge them too quickly. Prudence bids us do so; we might need one someday.

The Intercept notes–in an essay by Alice Speri–that ‘deadly heat’ is killing prisoners in US prisons, that state governments would much rather spend money on legal fees than on installing air conditioning. In one egregious instance, Louisiana spent one million on legal fees to avoid spending $225,000 on AC. As the secretary of the Louisiana Department of Public Safety and Corrections Jimmy LeBlanc put it to the Associated Press in June, installing air conditioning at Angola would open a “Pandora’s box.” and that his “biggest concern is the impact on the whole system and the cost.” As George Gale noted in response (in a comment on my Facebook page), “I suspect what he actually means is “The public would crucify us if we air conditioned prisoners!”

Indeed.

Not too long ago. I made the mistake of reading the comments section in an online article about Orange is the New Black. There, many commentators expressed anger and dismay over the treatment of prisoners that was depicted in the show. Unfortunately, their anger and dismay was directed at the coddling that the inmates seemed to receive behind bars: They watch television! They walk around in the prison yard! They get their hair done! They had a store where they could buy stuff! One commentator finally went right ahead and said it “These women have a better life than I do.” There was something pathetic about that claim, something that spoke to just how onerous she imagined her life to be if it could be compared to that of a prisoner locked up behind bars. (This is not to say that many living outside of prison do not have qualitatively worse lives than they would have inside but I do not think this person, with an internet connection and the time to read and comment on an article about a television show, was one of them.)

Somewhere in the retributivist argument that many folks employ, the following premise is smuggled in:

If you commit a crime, and are convicted of doing so, you thereby lose all and claims to any civil, constitutional, and human rights. Indeed, you cease being a human deserving of any sort of considerate treatment. You are, after all, a convicted criminal.

It will be noticed that in this case ‘convicted criminal’ has come to mean ‘degenerate sub-human lacking those vital features which make him or her a worthy subject of moral concern.’ It’s not an eye for a eye but rather body and soul for an eye. (It should be remembered that the ‘eye for an eye’ formulation includes proportionality in its claim.) As a result, it is not enough that prisoners are denied their freedom and choice, restricted to particular spaces, told when to wake up, go to sleep, put the lights out, exercise, served particular food items and not other (with some concessions made for dietary constraints), and subjected to–among many arbitrary exercises of power–violence and sexual assault from guards and other inmates. No matter. They deserve it, they asked for it, they got what was coming, if you can’t do the time don’t do the crime, they should have thought about this before they committed the crime: the list of stern platitudes directed at convicts is never-ending, a grand testimonial to the smugness and complacency and small-mindedness of those of us on the ‘outside’ who have lost our capacity for empathy, who imagine that the strong arm of the law will never be lowered on them, who imagine that when they make a mistake, the benevolence and forgiving that has been so carefully hidden away by the world so that it can better deal with its convicts will suddenly be directed at them. It won’t; to encourage vindictive and cruel retribution directed at others is to set up a store for oneself too.